formofindemnification






                                                                             INDEMNIFICATION AGREEMENT             by and between               ADT INC.                   and                                        []             as Indemnitee                                                                                     Dated as of []                                                                                                   





 






                               TABLE OF CONTENTS                                                                            Page   ARTICLE 1      DEFINITIONS .................................................................................................2   ARTICLE 2      INDEMNITY IN THIRD-PARTY PROCEEDINGS ...................................7   ARTICLE 3      INDEMNITY IN PROCEEDINGS BY OR IN THE RIGHT OF THE                 COMPANY .......................................................................................................7   ARTICLE 4      INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS                 WHOLLY OR PARTLY SUCCESSFUL ......................................................8   ARTICLE 5      INDEMNIFICATION FOR EXPENSES OF A WITNESS.........................8   ARTICLE 6      ADDITIONAL INDEMNIFICATION, HOLD HARMLESS AND                EXONERATION RIGHTS .............................................................................9   ARTICLE 7      CONTRIBUTION IN THE EVENT OF JOINT LIABILITY ....................9   ARTICLE 8     EXCLUSIONS................................................................................................10   ARTICLE 9      ADVANCES OF EXPENSES; SELECTION OF LAW FIRM .................11   ARTICLE 10     PROCEDURE FOR NOTIFICATION; DEFENSE OF CLAIM;                 SETTLEMENT ..............................................................................................12   ARTICLE 11     PROCEDURE UPON APPLICATION FOR INDEMNIFICATION ......13   ARTICLE 12     PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS .......14   ARTICLE 13    REMEDIES OF INDEMNITEE ..................................................................16   ARTICLE 14     SECURITY .....................................................................................................18   ARTICLE 15     NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE;                 PRIMACY OF INDEMNIFICATION; SUBROGATION ........................18   ARTICLE 16     ENFORCEMENT AND BINDING EFFECT .............................................21   ARTICLE 17    MISCELLANEOUS ......................................................................................21                                       i   





 






                                                                                                        INDEMNIFICATION AGREEMENT                INDEMNIFICATION AGREEMENT, dated effective as of [] (this  “Agreement”), by and between ADT Inc., a Delaware corporation (the “Company”), and []   (“Indemnitee”).  Capitalized terms used herein and not otherwise defined shall have the   respective meanings set forth in Article 1.                WHEREAS, the Company desires to attract and retain the services of highly   qualified individuals, such as Indemnitee, to serve the Company;                WHEREAS, in order to induce Indemnitee to provide or continue to provide   services to the Company, the Company wishes to provide for the indemnification of, and   advancement of expenses to, Indemnitee to the fullest extent permitted by law;                WHEREAS, the Company and Indemnitee further recognize the substantial   increase in corporate litigation in general, subjecting directors, officers, employees, agents and   fiduciaries to expensive litigation risks at the same time as the availability and scope of coverage   of liability insurance provide increasing challenges for the Company;               WHEREAS, the Company’s Certificate of Incorporation (as the same may be  amended and/or restated from time to time, the “Certificate of Incorporation”) requires   indemnification of the officers and directors of the Company, and Indemnitee may also be   entitled to indemnification pursuant to applicable provisions of the Delaware General   Corporation Law (“DGCL”);                WHEREAS, the Certificate of Incorporation and the DGCL expressly provide  that the indemnification provisions set forth therein are not exclusive, and thereby contemplate  that contracts providing for indemnification may be entered into between the Company and  members of the board of directors of the Company (the “Board”), executive officers and other   key employees of the Company;                WHEREAS, this Agreement is a supplement to and in furtherance of the   Certificate of Incorporation and any resolutions adopted pursuant thereto and shall not be   deemed a substitute therefor nor to diminish or abrogate any rights of Indemnitee thereunder   (regardless of, among other things, any amendment to or revocation of governing documents or   any change in the composition of the Board or any Corporate Transaction); and                WHEREAS, Indemnitee will serve or continue to serve as a director, officer or   key employee of the Company for so long as Indemnitee is duly elected or appointed or until   Indemnitee tenders his or her resignation or is otherwise terminated by the Company.               NOW, THEREFORE, in consideration of the promises and the covenants   contained herein, the Company and Indemnitee do hereby covenant and agree as follows:      





 






                                           ARTICLE 1                                                              DEFINITIONS         As used in this Agreement:                   1.1.  “Affiliate” shall have the meaning set forth in Rule 405 under     the Securities Act of 1933, as amended (as in effect on the date hereof).                  1.2.  “Agreement” shall have the meaning set forth in the preamble.                   1.3.  “Beneficial Owner” and “Beneficial Ownership” shall have     the meaning set forth in Rule 13d-3 under the Exchange Act (as in effect on the date     hereof).                  1.4.  “Board” shall have the meaning set forth in the recitals.                  1.5.  “By-Laws” shall mean the Company’s By-Laws (as the same     may be amended and/or restated from time to time).                  1.6.  “Certificate of Incorporation” shall have the meaning set forth     in the recitals.                  1.7.  “Change in Control” shall mean, and shall be deemed to occur     upon the earliest to occur after the date of this Agreement of any of the following     events:               (a)     Acquisition of Stock by Third Party.  Any Person other than a  Permitted Holder is or becomes the Beneficial Owner, directly or indirectly, of securities  of the Company representing more than 50% of the combined voting power of the  Company’s then outstanding Voting Securities, unless (i) the change in the relative  Beneficial Ownership of the Company’s securities by any Person results solely from a  reduction in the aggregate number of outstanding shares of securities entitled to vote  generally in the election of directors or (ii) such acquisition was approved in advance by  the Continuing Directors and such acquisition would not constitute a Change in Control  under part (c) of this definition;               (b)     Change in Board of Directors.  Individuals who, as of the date  hereof, constitute the Board, and any new director whose appointment or election by the  Board or nomination for election by the Company’s stockholders was approved or  recommended by a vote of at least a majority of the directors then still in office who were  directors on the date hereof or whose appointment, election or nomination for election  was previously so approved or recommended by the directors referred to in this clause (b)  (collectively, the “Continuing Directors”), cease for any reason to constitute at least a  majority of the members of the Board;               (c)     Corporate Transactions.  The effective date of a reorganization,  merger or consolidation of the Company (in each case, a “Corporate Transaction”),                                    2               





 






                 unless following such Corporate Transaction:  (i) all or substantially all of the individuals  and entities who were the Beneficial Owners of Voting Securities of the Company  immediately prior to such Corporate Transaction beneficially own, directly or indirectly,  more than 50% of the combined voting power of the then outstanding Voting Securities  of the Company or other Person resulting from such Corporate Transaction (including,   without limitation, a corporation or other Person that as a result of such transaction owns  the Company or all or substantially all of the Company’s assets either directly or through   one or more Subsidiaries) in substantially the same proportions as their ownership of   Voting Securities immediately prior to such Corporate Transaction; (ii) no Person   (excluding any corporation resulting from such Corporate Transaction or the Permitted   Holders) is the Beneficial Owner, directly or indirectly, of 50% or more of the combined   voting power of the then outstanding Voting Securities of the Company or other Person   resulting from such Corporate Transaction, except to the extent that such ownership   existed prior to such Corporate Transaction; and (iii) at least a majority of the board of   directors of the Company or other Person resulting from such Corporate Transaction were   Continuing Directors at the time of the execution of the initial agreement, or of the action   of the Board, providing for such Corporate Transaction; or                (d)     Other Events.  The approval by the stockholders of the   Company of a plan of complete liquidation or dissolution of the Company or the  consummation of an agreement or series of related agreements for the sale or other   disposition, directly or indirectly, by the Company of all or substantially all of the   Company’s assets, other than such sale or other disposition by the Company of all or   substantially all of the Company’s assets to a Person, at least 50% of the combined voting   power of the Voting Securities of which are Beneficially Owned by (i) the stockholders   of the Company immediately prior to such sale or (ii) the Permitted Holders.                   1.8.  “Company” shall have the meaning set forth in the preamble      and shall also include, in addition to the resulting corporation or other entity, any      constituent corporation (including, without limitation, any constituent of a      constituent) absorbed in a consolidation or merger that, if its separate existence had      continued, would have had power and authority to indemnify its directors, officers,      employees or agents, so that if Indemnitee is or was a director, officer, employee or      agent of such constituent corporation, or is or was serving at the request of such      constituent corporation as a director, officer, manager, managing member, employee      or agent of another corporation, partnership, limited liability company, joint venture,      trust or other enterprise, Indemnitee shall stand in the same position under the      provisions of this Agreement with respect to the resulting or surviving corporation or      other entity as Indemnitee would have with respect to such constituent corporation if      its separate existence had continued.                   1.9.  “Continuing Directors” shall have the meaning set forth in      Section 1.7(b).                    1.10. “Corporate Status” shall describe the status as such of a      person who is or was a director, officer, trustee, general partner, manager, managing                                     3               





 






                member, fiduciary, employee or agent of the Company or of any other Enterprise  which such person is or was serving at the request of the Company.               1.11. “Corporate Transaction” shall have the meaning set forth in  Section 1.7(c).               1.12. “Delaware Court” shall mean the Court of Chancery of the  State of Delaware.               1.13. “DGCL” shall have the meaning set forth in the recitals.               1.14. “Disinterested Director” shall mean a director of the Company  who is not and was not a party to the Proceeding in respect of which indemnification  is sought by Indemnitee.               1.15. “Enterprise” shall mean the Company and any other  corporation, constituent corporation (including, without limitation, any constituent of  a constituent) absorbed in a consolidation or merger to which the Company (or any  of its wholly owned Subsidiaries) is a party, limited liability company, partnership,  joint venture, trust, employee benefit plan or other enterprise of which Indemnitee is  or was serving at the request of the Company as a director, officer, trustee, general  partner, manager, managing member, fiduciary, employee or agent.               1.16. “Exchange Act” shall mean the Securities Exchange Act of  1934, as amended.               1.17. “Expenses” shall include all reasonable and documented costs,  expenses and fees, including, but not limited to, attorneys’ fees, retainers, court  costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating  costs, printing and binding costs, telephone charges, postage, delivery service fees,  and all other disbursements or expenses of the types customarily incurred in  connection with prosecuting, defending, preparing to prosecute or defend,  investigating, being or preparing to be a witness in, settling or negotiating for the  settlement of, responding to or objecting to a request to provide discovery in, or  otherwise participating in, any Proceeding.  Expenses also shall include expenses  incurred in connection with any appeal resulting from any Proceeding, including,  without limitation, the premium, security for, and other costs relating to any cost  bond, supersedeas bond, or other appeal bond or its equivalent and any federal, state,  local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed  receipt of any payments under this Agreement.  Expenses, however, shall not include  amounts paid in settlement by Indemnitee or the amount of judgments, fines or  penalties against Indemnitee.               1.18. “Indemnification Arrangements” shall have the meaning set  forth in Section 15.2.               1.19. “Indemnitee” shall have the meaning set forth in the preamble.                                 4               





 






                            1.20. “Indemnitee-Related Entities” shall mean any corporation,  limited liability company, partnership, joint venture, trust, employee benefit plan or  other enterprise (other than the Company, any other Enterprise controlled by the  Company or the insurer under and pursuant to an insurance policy of the Company  or any such controlled Enterprise) from whom an Indemnitee may be entitled to  indemnification or advancement of expenses with respect to which, in whole or in  part, the Company or any other Enterprise controlled by the Company may also have  an indemnification or advancement obligation.               1.21. “Independent Counsel” shall mean a law firm, or a person  admitted to practice law in any state of the United States or the District of Columbia  who is a member of a law firm, that is of outstanding reputation, experienced in  matters of corporation law and neither is as of the date of selection of such firm, nor  has been during the period of three years immediately preceding the date of selection  of such firm, retained to represent: (a) the Company or Indemnitee in any material  matter (other than with respect to matters concerning Indemnitee under this  Agreement, or of other indemnitees under similar indemnification agreements); or  (b) any other party to the Proceeding giving rise to a claim for indemnification  hereunder.  Notwithstanding the foregoing, the term “Independent Counsel” shall not  include any person who, under the applicable standards of professional conduct then  prevailing, would have a conflict of interest in representing either the Company or  Indemnitee in an action to determine Indemnitee’s rights under this Agreement.  The  Company agrees to pay the reasonable fees and expenses of the Independent Counsel  referred to above and to fully indemnify such counsel against any and all Expenses,  claims, liabilities and damages arising out of or relating to this Agreement or its  engagement pursuant hereto.  For purposes of this definition, a “material matter”  shall mean any matter for which billings exceeded or are expected to exceed  $100,000.               1.22. “Permitted Holder” shall mean Prime Security Services  TopCo Parent, L.P., Prime Security Services TopCo Parent GP, LLC, AP VIII Prime  Security Services Holdings, L.P., AP VIII Prime Security Services Management,  LLC, AP VIII Prime Security LP, Apollo Management, L.P., Apollo Management  GP, LLC, Apollo Management Holdings, L.P., Apollo Management Holdings GP,  LLC, Leon Black, Joshua Harris, Marc Rowan and their respective Affiliates and  Related Parties.               1.23. “Person” shall have the meaning set forth in Sections 13(d)  and 14(d) of the Exchange Act (as in effect on the date hereof); provided, however,  that the term “Person” shall exclude: (a) the Company; (b) any Subsidiaries of the  Company; and (c) any employee benefit plan of the Company or a Subsidiary of the  Company or any trustee or other fiduciary holding securities under an employee  benefit plan of the Company or of a Subsidiary of the Company or of a corporation  or other entity owned, directly or indirectly, by the stockholders of the Company in  substantially the same proportions as their ownership of stock of the Company.                                 5               





 






                            1.24. “Proceeding” shall include any threatened, pending or  completed action, suit, arbitration, mediation, alternate dispute resolution  mechanism, investigation, inquiry, administrative hearing or any other actual,  threatened, pending or completed proceeding, including, without limitation, any and  all appeals, whether brought by or in the right of the Company or otherwise and  whether of a civil (including, without limitation, intentional or unintentional tort  claims), criminal, administrative or investigative nature, whether formal or informal,  in which Indemnitee was, is, will or might be involved as a party or otherwise by  reason of the fact that Indemnitee is or was a director or officer or key employee of  the Company, by reason of any action taken by or omission by Indemnitee, or of any  action or omission on Indemnitee’s part while acting as a director or officer or key  employee of the Company, or by reason of the fact that Indemnitee is or was serving  at the request of the Company as a director, officer, trustee, general partner,  managing member, fiduciary, employee or agent of any other Enterprise; in each  case whether or not acting or serving in such capacity at the time any liability or  expense is incurred for which indemnification, reimbursement or advancement of  expenses can be provided under this Agreement or Section 145 of the DGCL;  including any proceeding pending on or before the date of this Agreement but  excluding any proceeding initiated by Indemnitee to enforce Indemnitee’s rights  under this Agreement or Section 145 of the DGCL.               1.25. “Related Party” shall mean, with respect to any Person,  (a) any controlling stockholder, controlling member, general partner, Subsidiary,  spouse or immediate family member (in the case of an individual) of such Person,  (b) any estate, trust, corporation, partnership or other entity, the beneficiaries,  stockholders, partners or owners of which consist solely of one or more Permitted  Holders and/or such other Persons referred to in the immediately preceding clause  (a), or (c) any executor, administrator, trustee, manager, director or other similar  fiduciary of any Person referred to in the immediately preceding clause (b), acting  solely in such capacity.               1.26. “Section 409A” shall have the meaning set forth in Section  17.2.               1.27. “Subsidiary” with respect to any Person, shall mean any  corporation or other entity of which a majority of the voting power of the voting  equity securities or equity interest is owned, directly or indirectly, by that Person.               1.28. “Voting Securities” shall mean any securities of the Company  (or a surviving entity as described in the definition of a “Change in Control”) that  vote generally in the election of directors (or similar body).               1.29. References to “fines” shall include any excise tax or penalty  assessed on Indemnitee with respect to any employee benefit plan; references to  “other enterprise” shall include employee benefit plans; references to “serving at the  request of the Company” shall include, without limitation, any service as a director,  officer, employee, agent or fiduciary of the Company which imposes duties on, or                                 6               





 






              involves services by, such director, officer, employee, agent or fiduciary with respect            to an employee benefit plan, its participants or beneficiaries; and if Indemnitee acted            in good faith and in a manner Indemnitee reasonably believed to be in the best            interests of the participants and beneficiaries of an employee benefit plan,            Indemnitee shall be deemed to have acted in a manner “not opposed to the best            interests of the Company” as referred to in this Agreement.                         1.30. The phrase “to the fullest extent not prohibited by (and not            merely to the extent affirmatively permitted by) applicable law” shall include, but            not be limited to: (a) to the fullest extent authorized or permitted by the provision of            the DGCL that authorizes or contemplates additional indemnification by agreement,            or the corresponding provision of any amendment to or replacement of the DGCL            and (b) to the fullest extent authorized or permitted by any amendments to or            replacements of the DGCL adopted after the date of this Agreement that increase the            extent to which a corporation may indemnify its officers and directors.                                     ARTICLE 2                                                            INDEMNITY IN THIRD-PARTY PROCEEDINGS                 Subject to Article 8, the Company shall indemnify, hold harmless and exonerate   Indemnitee in accordance with the provisions of this Article 2 if Indemnitee is, was or is   threatened to be made a party to or a participant (as a witness or otherwise) in any Proceeding,   other than a Proceeding by or in the right of the Company to procure a judgment in its favor.    Subject to Article 8, to the fullest extent not prohibited by applicable law, Indemnitee shall be   indemnified against all Expenses, judgments, fines, penalties and, subject to Section 10.3,   amounts paid in settlement actually and reasonably incurred by Indemnitee or on Indemnitee’s   behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee   acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to   the best interests of the Company and, in the case of a criminal Proceeding, had no reasonable  cause to believe that such conduct was unlawful.  No indemnification for Expenses shall be made   under this Article 2 in respect of any claim, issue or matter as to which Indemnitee shall have   been finally adjudged (and not subject to further appeal) by a court of competent jurisdiction to   be liable to the Company, except to the extent that the Delaware Court or any court in which the   Proceeding was brought shall determine upon application that, despite the adjudication of   liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably   entitled to indemnification.                                     ARTICLE 3                                                INDEMNITY IN PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY                 Subject to Article 8, the Company shall indemnify, hold harmless and exonerate   Indemnitee in accordance with the provisions of this Article 3 if Indemnitee is, was or is   threatened to be made a party to or a participant (as a witness or otherwise) in any Proceeding by   or in the right of the Company to procure a judgment in its favor.  Subject to Article 8, to the   fullest extent not prohibited by (and not merely to the extent affirmatively permitted by)                                          7   





 






     applicable law, Indemnitee shall be indemnified, held harmless and exonerated against all   Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in   connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in   good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best   interests of the Company.  No indemnification for Expenses shall be made under this Article 3 in   respect of any claim, issue or matter as to which Indemnitee shall have been finally adjudged  (and not subject to further appeal) by a court of competent jurisdiction to be liable to the  Company, except to the extent that the Delaware Court or any court in which the Proceeding was  brought shall determine upon application that, despite the adjudication of liability but in view of   all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification.                                     ARTICLE 4                                             INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS WHOLLY OR PARTLY                                   SUCCESSFUL                 Notwithstanding any other provisions of this Agreement, to the extent that   Indemnitee is a party to (or a participant in) and is successful, on the merits or otherwise, in any   Proceeding or in defense of any claim, issue or matter therein, in whole or in part, the Company   shall indemnify, hold harmless and exonerate Indemnitee against all Expenses actually and   reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection therewith.  For the   avoidance of doubt, if Indemnitee is not wholly successful in such Proceeding but is successful,   on the merits or otherwise, as to one or more but less than all claims, issues or matters in such   Proceeding, then the Company shall indemnify, hold harmless and exonerate Indemnitee against   all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in   connection with each resolved claim, issue or matter, whether or not Indemnitee was wholly or   partly successful; provided that Indemnitee shall only be entitled to indemnification for Expenses   with respect to unsuccessful claims under this Article 4 to the extent Indemnitee acted in good   faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests   of the Company and, in the case of a criminal Proceeding, had no reasonable cause to believe   that such conduct was unlawful.  For purposes of this Article 4 and without limitation, the   termination of any claim, issue or matter in such a Proceeding by dismissal, with or without  prejudice, or by settlement, shall be deemed to be a successful result as to such claim, issue or  matter.                                     ARTICLE 5                                                          INDEMNIFICATION FOR EXPENSES OF A WITNESS                Notwithstanding any other provision of this Agreement, to the extent that  Indemnitee is, by reason of Indemnitee’s Corporate Status, a witness in any Proceeding to which   Indemnitee is not a party, Indemnitee shall be indemnified, held harmless and exonerated against   all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in   connection therewith.                                                           8   





 






                                      ARTICLE 6                                               ADDITIONAL INDEMNIFICATION, HOLD HARMLESS AND EXONERATION                                      RIGHTS                In addition to and notwithstanding any limitations in Articles 2, 3 or 4, but subject   to Article 8, the Company shall indemnify, hold harmless and exonerate Indemnitee to the fullest   extent not prohibited by (and not merely to the extent affirmatively permitted by) law if   Indemnitee is, was or is threatened to be made a party to or a participant in, any Proceeding   (including a Proceeding by or in the right of the Company to procure a judgment in its favor)   against all Expenses, judgments, fines, penalties and, subject to Section 10.3, penalties and   amounts paid in settlement (including all interest, assessments and other charges paid or payable   in connection with or in respect of such Expenses, judgments, fines, penalties and amounts paid   in settlement) actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in   connection with the Proceeding.  No indemnity shall be available under this Article 6 on account   of Indemnitee’s conduct that constitutes a breach of Indemnitee’s duty of loyalty to the Company  or its stockholders or is an act or omission not in good faith or that involves intentional  misconduct or a knowing violation of the law.                                     ARTICLE 7                                                         CONTRIBUTION IN THE EVENT OF JOINT LIABILITY                          7.1.  To the fullest extent not prohibited by (and not merely to the            extent affirmatively permitted by) law, if the indemnification rights provided for in            this Agreement are unavailable to Indemnitee in whole or in part for any reason            whatsoever, the Company, in lieu of indemnifying Indemnitee, shall pay, in the first            instance, the entire amount incurred by Indemnitee, whether for judgments,            liabilities, fines, penalties, amounts paid or to be paid in settlement and/or for            Expenses, in connection with any Proceeding without requiring Indemnitee to            contribute to such payment, and the Company hereby waives and relinquishes any            right of contribution it may have at any time against Indemnitee.                         7.2.  The Company shall not enter into any settlement of any            Proceeding in which the Company is jointly liable with Indemnitee (or would be if            joined in such Proceeding) unless such settlement provides for a full and final            release of all claims asserted against Indemnitee.                         7.3.  The Company hereby agrees to fully indemnify, hold harmless            and exonerate Indemnitee from any claims for contribution which may be brought by            officers, directors or employees of the Company (other than Indemnitee) who may            be jointly liable with Indemnitee.                                           9   





 






                                      ARTICLE 8                                                                            EXCLUSIONS                          8.1.  Notwithstanding any provision in this Agreement, the            Company shall not be obligated under this Agreement to make any indemnity,            contribution or advancement of Expenses in connection with any claim made against            Indemnitee:                     (a)      except as provided in Section 15.4, for which payment has   actually been made to or on behalf of Indemnitee under any insurance policy of the Company or   its Subsidiaries or other indemnity provision of the Company or its Subsidiaries, except with   respect to any excess beyond the amount paid under any insurance policy, contract, agreement,   other indemnity provision or otherwise; or                      (b)     for an accounting of profits made from the purchase and sale (or   sale and purchase) by Indemnitee of securities of the Company within the meaning of   Section 16(b) of the Exchange Act (or any similar successor statute) or similar provisions of state   statutory law or common law; or                      (c)     in connection with any Proceeding (or any part of any   Proceeding) initiated or brought voluntarily by Indemnitee, including, without limitation, any   Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its   directors, officers, managers, managing members, employees or other indemnitees, other than a  Proceeding initiated by Indemnitee to enforce its rights under this Agreement, unless (i) the  Board authorized the Proceeding (or any part of any Proceeding) or (ii) the Company provides  the indemnification payment, in its sole discretion, pursuant to the powers vested in the  Company under applicable law; or                     (d)      for the payment of amounts required to be reimbursed to the  Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002, as amended, or any  similar successor statute; or                     (e)      for any payment to Indemnitee that is determined to be unlawful  by a final judgment or other adjudication of a court or arbitration, arbitral or administrative body  of competent jurisdiction as to which there is no further right or option of appeal or the time  within which an appeal must be filed has expired without such filing and under the procedures  and subject to the presumptions of this Agreement; or                     (f)      in connection with any Proceeding initiated by Indemnitee to  enforce its rights under this Agreement if a court or arbitration, arbitral or administrative body of  competent jurisdiction determines by final judicial decision that each of the material assertions  made by Indemnitee in such Proceeding was not made in good faith or was frivolous.               The exclusions in this Article 8 shall not apply to counterclaims or affirmative   defenses asserted by Indemnitee in an action brought against Indemnitee.                                           10    





 






                                        ARTICLE 9                                    ADVANCES OF EXPENSES; SELECTION OF LAW FIRM                9.1.  Subject to Article 8, the Company shall, unless prohibited by  applicable law, advance the Expenses incurred by or on behalf of Indemnitee in  connection with any Proceeding within ten business days after the receipt by the  Company of a statement or statements requesting such advances, together with a  reasonably detailed written explanation of the basis therefor and an itemization of  legal fees and disbursements in reasonable detail, from time to time, whether prior to  or after final disposition of any Proceeding.  Advances shall be unsecured and  interest free. Indemnitee shall qualify for advances, to the fullest extent permitted by  this Agreement, solely upon the execution and delivery to the Company of an  undertaking providing that Indemnitee undertakes to repay the advance to the extent  that it is ultimately determined, by final judicial decision of a court or arbitration,  arbitral or administrative body of competent jurisdiction from which there is no  further right to appeal, that Indemnitee is not entitled to be indemnified by the  Company under the provisions of this Agreement or pursuant to applicable law.   This Section 9.1 shall not apply to any claim made by Indemnitee for which an  indemnification payment is excluded pursuant to Article 8.               9.2.  If the Company shall be obligated under Section 9.1 hereof to  pay the Expenses of any Proceeding against Indemnitee, then the Company shall be  entitled to assume the defense of such Proceeding upon the delivery to Indemnitee of  written notice of its election to do so.  If the Company elects to assume the defense  of such Proceeding, then unless the plaintiff or plaintiffs in such Proceeding include  one or more Persons holding, together with his, her or its Affiliates, in the aggregate,  a majority of the combined voting power of the Company’s then outstanding Voting  Securities, the Company shall assume such defense using a single law firm (in  addition to local counsel) selected by the Company representing Indemnitee and  other present and former directors or officers of the Company.  The retention of such  law firm by the Company shall be subject to prior written approval by Indemnitee,  which approval shall not be unreasonably withheld, delayed or conditioned.  If the  Company elects to assume the defense of such Proceeding and the plaintiff or  plaintiffs in such Proceeding include one or more Persons holding, together with his,  her or its Affiliates, in the aggregate, a majority of the combined voting power of the  Company’s then outstanding Voting Securities, then the Company shall assume such  defense using a single law firm (in addition to local counsel) selected by Indemnitee  and any other present or former directors or officers of the Company who are parties  to such Proceeding.  After (x) in the case of retention of any such law firm selected  by the Company, delivery of the required notice to Indemnitee, approval of such law  firm by Indemnitee and the retention of such law firm by the Company, or (y) in the  case of retention of any such law firm selected by Indemnitee, the completion of  such retention, the Company will not be liable to Indemnitee under this Agreement  for any Expenses of any other law firm incurred by Indemnitee after the date that  such first law firm is retained by the Company with respect to the same Proceeding;  provided, that in the case of retention of any such law firm selected by the Company                                11                





 






                     (a) Indemnitee shall have the right to retain a separate law firm in any such       Proceeding at Indemnitee’s sole expense; and (b) if (i) the retention of a law firm by       Indemnitee has been previously authorized by the Company in writing, (ii)       Indemnitee shall have reasonably concluded that (1) there may be a conflict of       interest between either (x) the Company and Indemnitee or (y) Indemnitee and       another present or former director or officer of the Company also represented by       such law firm in the conduct of any such defense, or (2) there may be defenses       available to Indemnitee that are incompatible or inconsistent with those available to       the Company or another present or former director represented by such law firm in       the conduct of such defense, or (iii) the Company shall not, in fact, have retained a       law firm to prosecute the defense of such Proceeding within thirty days, then the       reasonable Expenses of a single law firm retained by Indemnitee shall be at the       expense of the Company.  Notwithstanding anything else to the contrary in this       Section 9.2, the Company will not be entitled without the written consent of the       Indemnitee to assume the defense of any Proceeding brought by or in the right of the       Company.                                ARTICLE 10                                      PROCEDURE FOR NOTIFICATION; DEFENSE OF CLAIM; SETTLEMENT                     10.1. Indemnitee shall, as a condition precedent to Indemnitee’s       right to be indemnified under this Agreement, give the Company notice in writing       promptly of any claim made against Indemnitee for which indemnification will or       could be sought under this Agreement; provided, however, that a delay in giving       such notice shall not deprive Indemnitee of any right to be indemnified under this       Agreement unless, and then only to the extent that, such delay is materially       prejudicial to the defense of such claim.  The omission or delay to notify the       Company will not relieve the Company from any liability for indemnification which       it may have to Indemnitee otherwise than under this Agreement.  The Secretary of       the Company shall, promptly upon receipt of such a request for indemnification,       advise the Board in writing that Indemnitee has requested indemnification.                    10.2. The Company will be entitled to participate in the Proceeding       at its own expense.                    10.3. The Company shall have no obligation to indemnify       Indemnitee under this Agreement for any amounts paid in settlement of any claim       effected without the Company’s prior written consent, provided the Company has       not breached its obligations hereunder.  The Company shall not settle any claim,       including, without limitation, any claim in which it takes the position that       Indemnitee is not entitled to indemnification in connection with such settlement, nor       shall the Company settle any claim which would impose any fine or obligation on       Indemnitee or attribute to Indemnitee any admission of liability, without       Indemnitee’s prior written consent.  Neither the Company nor Indemnitee shall       unreasonably withhold, delay or condition their consent to any proposed settlement.                                      12                





 






                                        ARTICLE 11                                  PROCEDURE UPON APPLICATION FOR INDEMNIFICATION                11.1. Upon written request by Indemnitee for indemnification  pursuant to the first sentence of Section 10.1, a determination, if required by  applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the  specific case: (a) by a majority of the Company’s stockholders, (b) if a Change in  Control shall have occurred, by Independent Counsel in a written opinion to the  Board, a copy of which shall be delivered to Indemnitee; or (c) if a Change in  Control shall not have occurred, (i) by a majority vote of the Disinterested Directors  (provided there is a minimum of three Disinterested Directors), even though less  than a quorum of the Board, (ii) by a committee of Disinterested Directors  designated by a majority vote of the Disinterested Directors (provided there is a  minimum of three Disinterested Directors), even though less than a quorum of the  Board, or (iii) if there are less than three Disinterested Directors or, if such  Disinterested Directors so direct, by Independent Counsel in a written opinion to the  Board, a copy of which shall be delivered to Indemnitee, and, if it is so determined  that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made  within ten business days after such determination and any future amounts due to  Indemnitee shall be paid in accordance with this Agreement.  Indemnitee shall  cooperate with the Persons making such determination with respect to Indemnitee’s  entitlement to indemnification, including, without limitation, providing to such  Persons upon reasonable advance request any documentation or information which is  not privileged or otherwise protected from disclosure and which is reasonably  available to Indemnitee and reasonably necessary to such determination, provided,  that nothing contained in this Agreement shall require Indemnitee to waive any  privilege Indemnitee may have.  Any costs or Expenses (including, without  limitation, reasonable and documented attorneys’ fees and disbursements) incurred  by Indemnitee in so cooperating with the Persons making such determination shall  be borne by the Company (irrespective of the determination as to Indemnitee’s  entitlement to indemnification), and the Company hereby indemnifies and agrees to  hold Indemnitee harmless therefrom.               11.2. If the determination of entitlement to indemnification is to be  made by Independent Counsel pursuant to Section 11.1 hereof, the Independent  Counsel shall be selected as provided in this Section 11.2.  If a Change in Control  shall not have occurred, the Independent Counsel shall be selected by the Board, and  the Company shall give written notice to Indemnitee advising Indemnitee of the  identity of the Independent Counsel so selected.  If a Change in Control shall have  occurred, the Independent Counsel shall be selected by Indemnitee (unless  Indemnitee shall request that such selection be made by the Board, in which event  the preceding sentence shall apply), and Indemnitee shall give written notice to the  Company advising it of the identity of the Independent Counsel so selected.  In  either event, Indemnitee or the Company, as the case may be, may, within thirty days  after such written notice of selection shall have been given, deliver to the Company  or to Indemnitee, as the case may be, a written objection to such selection; provided,                                13                





 






                however, that such objection may be asserted only on the ground that the  Independent Counsel so selected does not meet the requirements of “Independent  Counsel” as defined in Article 1 of this Agreement, and the objection shall set forth  with particularity the factual basis of such assertion. Absent a proper and timely  objection, the person so selected shall act as Independent Counsel.  If such written  objection is so made and substantiated, the Independent Counsel so selected may not  serve as Independent Counsel unless and until such objection is withdrawn or a court  or arbitration, arbitral or administrative body has determined that such objection is  without merit.  If, within thirty days after submission by Indemnitee of a written  request for indemnification pursuant to Section 10.1 hereof, no Independent Counsel  shall have been selected and not objected to, either the Company or Indemnitee may  seek arbitration for resolution of any objection which shall have been made by the  Company or Indemnitee to the other’s selection of Independent Counsel and/or for  the appointment as Independent Counsel of a person selected by the arbitrator or by  such other person as the arbitrator shall designate, and the person with respect to  whom all objections are so resolved or the person so appointed shall act as  Independent Counsel under Section 11.1 hereof.  Such arbitration referred to in the  previous sentence shall be conducted by a single arbitrator pursuant to the  Commercial Arbitration Rules of the American Arbitration Association, and Article  13 hereof shall apply in respect of such arbitration and the Company and Indemnitee.   Upon the due commencement of any judicial proceeding or arbitration pursuant to  Section 13.1 of this Agreement, Independent Counsel shall be discharged and  relieved of any further responsibility in such capacity (subject to the applicable  standards of professional conduct then prevailing).                           ARTICLE 12                                   PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS                12.1. In making a determination with respect to entitlement to  indemnification hereunder, the Person making such determination shall presume that  Indemnitee is entitled to indemnification under this Agreement if Indemnitee has  submitted a request for indemnification in accordance with Section 10.1 of this  Agreement.  Anyone seeking to overcome this presumption shall have the burden of  proof and the burden of persuasion by clear and convincing evidence.  Neither the  failure of the Company (including by its Board, its Independent Counsel and its  stockholders) to have made a determination prior to the commencement of any  action pursuant to this Agreement that indemnification or advancement of expenses  is proper in the circumstances because Indemnitee has met the applicable standard of  conduct, nor an actual determination by the Company (including by its Board, its  Independent Counsel and its stockholders) that Indemnitee has not met such  applicable standard of conduct, shall be a defense to the action or create a  presumption that Indemnitee has not met the applicable standard of conduct.               12.2. If the Person empowered or selected under Article 11 of this  Agreement to determine whether Indemnitee is entitled to indemnification shall not  have made a determination within sixty days after receipt by the Company of the                                 14                





 






                request therefor, the requisite determination of entitlement to indemnification shall  be deemed to have been made and Indemnitee shall be entitled to such  indemnification, absent (a) a misstatement by Indemnitee of a material fact, or an  omission of a material fact necessary to make Indemnitee’s statement not materially  misleading, in connection with the request for indemnification, or (b) a final judicial  determination that any or all such indemnification is expressly prohibited under  applicable law; provided, however, that such sixty-day period may be extended for a  reasonable time, not to exceed an additional thirty days, if the Person making the  determination with respect to entitlement to indemnification in good faith requires  such additional time for the obtaining or evaluating of documentation and/or  information relating thereto, provided further that, if final selection of Independent  Counsel has not occurred within thirty days after receipt by the Company of the  request for indemnification, such sixty-day period may be after the final selection of  Independent Counsel pursuant to Section 11.2.               12.3. The termination of any Proceeding or of any claim, issue or  matter therein, by judgment, order, settlement (with or without court approval),  conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as  otherwise expressly provided in this Agreement) of itself adversely affect the right of  Indemnitee to indemnification or create a presumption that Indemnitee did not act in  good faith and in a manner which Indemnitee reasonably believed to be in or not  opposed to the best interests of the Company or, with respect to any criminal  Proceeding, that Indemnitee had reasonable cause to believe that Indemnitee’s  conduct was unlawful.               12.4. For purposes of any determination of good faith pursuant to  this Agreement, Indemnitee shall be deemed to have acted in good faith if, among  other things, Indemnitee’s action is based on the records or books of account of the  Enterprise, including financial statements, or on information supplied to Indemnitee  by the directors or officers of the Enterprise in the course of their duties, or on the  advice of legal counsel for the Enterprise, its board of directors, any committee of  the board of directors or any director, or on information or records given or reports  made to the Enterprise, its board of directors, any committee of the board of  directors or any director, by an independent certified public accountant or by an  appraiser or other expert selected with reasonable care by the Enterprise, its board of  directors, any committee of the board of directors or any director.   The provisions of  this Section 12.4 shall not be deemed to be exclusive or to limit in any way the other  circumstances in which Indemnitee may be deemed or found to have met the  applicable standard of conduct set forth in this Agreement.  In any event, it shall be  presumed that Indemnitee has at all times acted in good faith and in a manner  Indemnitee reasonably believed to be in or not opposed to the best interests of the  Company. Anyone seeking to overcome this presumption shall have the burden of  proof and the burden of persuasion by clear and convincing evidence.               12.5. The knowledge and/or actions, or failure to act, of any other  director, officer, trustee, partner, managing member, fiduciary, agent or employee of                                 15                





 






                the Enterprise shall not be imputed to Indemnitee for purposes of determining the  right to indemnification under this Agreement.               12.6. The Company acknowledges that a settlement or other  disposition short of final judgment may be successful if it permits a party to avoid  expense, delay, distraction, disruption and uncertainty.  In the event that any action,  claim or proceeding to which Indemnitee is a party is resolved in any manner other  than by adverse judgment against Indemnitee (including, without limitation,  settlement of such action, claim or proceeding with or without payment of money or  other consideration) it shall be presumed that Indemnitee has been successful on the  merits or otherwise in such action, suit or proceeding.  Anyone seeking to overcome  this presumption shall have the burden of proof and the burden of persuasion by  clear and convincing evidence.                           ARTICLE 13                                                 REMEDIES OF INDEMNITEE                13.1. In the event that (a) a determination is made pursuant to  Article 11 of this Agreement that Indemnitee is not entitled to indemnification under  this Agreement, (b) advancement of Expenses, to the fullest extent permitted by  applicable law, is not timely made pursuant to Article 9 of this Agreement, (c) no  determination of entitlement to indemnification shall have been made pursuant to  Section 11.1 of this Agreement within thirty days after receipt by the Company of  the request for indemnification and of reasonable documentation and information  which Indemnitee may be called upon to provide pursuant to Section 11.1,  (d) payment of indemnification is not made pursuant to Articles 4, 5, 6 or the last  sentence of Section 11.1 of this Agreement within ten business days after receipt by  the Company of a written request therefor, (e) a contribution payment is not made in  a timely manner pursuant to Article 7 of this Agreement, (f) payment of  indemnification pursuant to Article 3 or 6 of this Agreement is not made within  thirty days after a determination has been made that Indemnitee is entitled to  indemnification or (g) the Company or any representative thereof takes or threatens  to take any action to declare this Agreement void or unenforceable, or institutes any  litigation or other action or Proceeding designed to deny, or to recover from,  Indemnitee the benefits provided or intended to be provided to Indemnitee  hereunder, Indemnitee shall be entitled to an adjudication by a court of competent  jurisdiction of Indemnitee’s entitlement to such indemnification, contribution or  advancement of Expenses. Alternatively, Indemnitee, at his or her option, may seek  an award in arbitration to be conducted by a single arbitrator pursuant to the  Commercial Arbitration Rules of the American Arbitration Association. Except as  set forth herein, the provisions of Delaware law (without regard to its conflict of  laws rules) shall apply to any such arbitration. The Company shall not oppose  Indemnitee’s right to seek any such adjudication or award in arbitration.  The award  rendered by such arbitration will be final and binding upon the parties hereto, and  final judgment on the arbitration award may be entered in any court of competent  jurisdiction.                                   16                





 






                            13.2. In the event that a determination shall have been made  pursuant to Section 11.1 of this Agreement that Indemnitee is not entitled to  indemnification, any judicial proceeding or arbitration commenced pursuant to this  Article 13 shall be conducted in all respects as a de novo trial, or arbitration, on the  merits and Indemnitee shall not be prejudiced by reason of that adverse  determination. In any judicial proceeding or arbitration commenced pursuant to this  Article 13, Indemnitee shall be presumed to be entitled to receive advances of  Expenses under this Agreement and the Company shall have the burden of proving  Indemnitee is not entitled to indemnification or advancement of Expenses, as the  case may be, and the Company may not refer to or introduce into evidence any  determination pursuant to Section 11.1 of this Agreement adverse to Indemnitee for  any purpose. If Indemnitee commences a judicial proceeding or arbitration pursuant  to this Article 13, Indemnitee shall not be required to reimburse the Company for  any advances pursuant to Article 9 until a final determination is made with respect to  Indemnitee’s entitlement to indemnification (as to which all rights of appeal shall  have been exhausted or lapsed).               13.3. If a determination shall have been made pursuant to  Section 11.1 of this Agreement that Indemnitee is entitled to indemnification, the  Company shall be bound by such determination in any judicial proceeding or  arbitration commenced pursuant to this Article 13, absent (a) a misstatement by  Indemnitee of a material fact or an omission of a material fact necessary to make  Indemnitee’s statement not materially misleading, in connection with the request for  indemnification or (b) a prohibition of such indemnification under applicable law.               13.4. The Company shall be precluded from asserting in any  judicial proceeding or arbitration commenced pursuant to this Article 13 that the  procedures and presumptions of this Agreement are not valid, binding and  enforceable and shall stipulate in any such court or before any such arbitrator that the  Company is bound by all the provisions of this Agreement.               13.5. The Company shall indemnify and hold harmless Indemnitee  to the fullest extent permitted by law against all Expenses and, if requested by  Indemnitee, shall (within ten business days after the Company’s receipt of such  written request) pay to Indemnitee, to the fullest extent permitted by applicable law,  such Expenses which are incurred by Indemnitee in connection with any judicial  proceeding or arbitration brought by Indemnitee (a) to enforce his or her rights  under, or to recover damages for breach of, this Agreement or any other  indemnification, advancement or contribution agreement or provision of the  Certificate of Incorporation, or the By-Laws now or hereafter in effect; or (b) for  recovery or advances under any insurance policy maintained by any person for the  benefit of Indemnitee, regardless of the outcome and whether Indemnitee ultimately  is determined to be entitled to such indemnification, advancement, contribution or  insurance recovery, as the case may be (unless such judicial proceeding or  arbitration was not brought by Indemnitee in good faith).                                 17                





 






                          13.6. Interest shall be paid by the Company to Indemnitee at the            legal rate under Delaware law for amounts which the Company indemnifies, or is            obliged to indemnify, for the period commencing with the date on which Indemnitee            requests indemnification, contribution, reimbursement or advancement of any            Expenses and ending with the date on which such payment is made to Indemnitee by            the Company.                                       ARTICLE 14                                                                             SECURITY                 Notwithstanding anything herein to the contrary, to the extent requested by   Indemnitee and approved by the Board, the Company may, as permitted by applicable securities   laws, at any time and from time to time provide security to Indemnitee for the Company’s   obligations hereunder through an irrevocable bank line of credit, funded trust or other collateral.   Any such security, once provided to Indemnitee, may not be revoked or released without the  prior written consent of Indemnitee.                                      ARTICLE 15                                                NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE; PRIMACY OF                        INDEMNIFICATION; SUBROGATION                          15.1. The rights of Indemnitee as provided by this Agreement shall            not be deemed exclusive of any other rights to which Indemnitee may at any time be            entitled under applicable law, the Certificate of Incorporation, the By-Laws, any            agreement, a vote of stockholders or a resolution of directors, or otherwise.  To the            extent that a change in applicable law, whether by statute or judicial decision,            permits greater indemnification or advancement of Expenses than would be afforded            currently under the Certificate of Incorporation, the By-Laws or this Agreement, it is            the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the            greater benefits so afforded by such change. No right or remedy herein conferred is            intended to be exclusive of any other right or remedy, and every other right and            remedy shall be cumulative and in addition to every other right and remedy given            hereunder or now or hereafter existing at law or in equity or otherwise. The assertion            or employment of any right or remedy hereunder, or otherwise, shall not prevent the            concurrent assertion or employment of any other right or remedy.                         15.2. The DGCL and the Certificate of Incorporation permit the            Company to purchase and maintain insurance or furnish similar protection or make            other arrangements, including, but not limited to, providing a trust fund, letter of            credit or surety bond (“Indemnification Arrangements”) on behalf of Indemnitee            against any liability asserted against Indemnitee or incurred by or on behalf of            Indemnitee or in such capacity as a director, officer, employee or agent of the            Company, or arising out of his or her status as such, whether or not the Company            would have the power to indemnify Indemnitee against such liability under the            provisions of this Agreement or under the DGCL, as it may then be in effect. The                                           18    





 






                purchase, establishment and maintenance of any such Indemnification Arrangement  shall not in any way limit or affect the rights and obligations of the Company or of  Indemnitee under this Agreement except as expressly provided herein, and the  execution and delivery of this Agreement by the Company and Indemnitee shall not  in any way limit or affect the rights and obligations of the Company or the other  party or parties thereto under any such Indemnification Arrangement.               15.3. To the extent that the Company maintains an insurance policy  or policies providing liability insurance for directors, officers, trustees, partners,  managers, managing members, fiduciaries, employees or agents of the Company or  of any other Enterprise which such person serves at the request of the Company,  Indemnitee shall be covered by such policy or policies in accordance with its or their  terms to the maximum extent of the coverage available for any such director, officer,  trustee, partner, manager, managing member, fiduciary, employee or agent under  such policy or policies. If, at the time the Company receives notice from any source  of a Proceeding as to which Indemnitee is a party or a participant (as a witness or  otherwise), the Company has director and officer liability insurance in effect, the  Company shall give prompt notice of the commencement of such Proceeding to the  insurers in accordance with the procedures set forth in the respective policies. The  Company shall thereafter take all necessary or desirable action to cause such insurers  to pay, on behalf of Indemnitee, all amounts payable as a result of such Proceeding  in accordance with the terms of such policies and Indemnitee shall promptly  cooperate with any request by the Company or insurers in connection with such  action.               15.4. The Company hereby acknowledges that Indemnitee has  certain rights to indemnification, advancement of Expenses and/or insurance  provided by the Indemnitee-Related Entities.  The Company hereby agrees (i) that it  is the indemnitor of first resort (i.e., its obligations to Indemnitee are primary and  any obligation of the Indemnitee-Related Entities to advance Expenses or to provide  indemnification for the same Expenses or liabilities incurred by Indemnitee are  secondary), (ii) that it shall be required to advance the full amount of Expenses  incurred by Indemnitee and shall be liable for the full amount of all Expenses,  judgments, penalties, fines and amounts paid in settlement to the extent not  prohibited by (and not merely to the extent affirmatively permitted by) applicable  law and as required by the terms of this Agreement and the Certificate of  Incorporation or the By-Laws (or any other agreement between the Company and  Indemnitee), without regard to any rights Indemnitee may have against the  Indemnitee-Related Entities and (iii) that it irrevocably waives, relinquishes and  releases the Indemnitee-Related Entities from any and all claims against the  Indemnitee-Related Entities for contribution, subrogation or any other recovery of  any kind in respect thereof.  The Company further agrees that no advancement or  payment by the Indemnitee-Related Entities on behalf of Indemnitee with respect to  any claim for which Indemnitee has sought indemnification from the Company shall  reduce or otherwise alter the rights of Indemnitee or the obligations of the Company  hereunder.  Under no circumstance shall the Company be entitled to any right of  subrogation or contribution by the Indemnitee-Related Entities.  In the event that any                                19                





 






                of the Indemnitee-Related Entities shall make any advancement or payment on  behalf of Indemnitee with respect to any claim for which Indemnitee has sought  indemnification from the Company, the Indemnitee-Related Entity making such  payment shall have a right of contribution and/or be subrogated to the extent of such  advancement or payment to all of the rights of recovery of Indemnitee against the  Company, and Indemnitee shall execute all papers reasonably required and take all  action reasonably necessary to secure such rights, including, without limitation,  execution of such documents as are necessary to enable the Indemnitee-Related  Entities to bring suit to enforce such rights.  The Company and Indemnitee agree that  the Indemnitee-Related Entities are express third party beneficiaries of the terms of  this Section 15.4, entitled to enforce this Section 15.4 as though each of the  Indemnitee-Related Entities were a party to this Agreement.               15.5. Except as provided in Section 15.4, in the event of any  payment under this Agreement, the Company shall be subrogated to the extent of  such payment to all of the rights of recovery of Indemnitee (other than against the  Indemnitee-Related Entities), who shall execute all papers reasonably required and  take all action reasonably necessary to secure such rights, including, without  limitation, execution of such documents as are necessary to enable the Company to  bring suit to enforce such rights.               15.6. Except as provided in Section 15.4, the Company shall not be  liable under this Agreement to make any payment of amounts otherwise  indemnifiable hereunder (or for which advancement is provided hereunder) if and to  the extent that Indemnitee has otherwise actually received such payment under any  insurance policy, contract, agreement or otherwise.               15.7. Except as provided in Section 15.4, the Company’s obligation  to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at  the request of the Company as a director, officer, trustee, partner, managing member,  fiduciary, employee or agent of any other Enterprise shall be reduced by any amount  Indemnitee has actually received as indemnification payments or advancement of  Expenses from such Enterprise. Notwithstanding any other provision of this  Agreement to the contrary, (a) Indemnitee shall have no obligation to reduce, offset,  allocate, pursue or apportion any indemnification advancement, contribution or  insurance coverage among multiple parties possessing such duties to Indemnitee  prior to the Company’s satisfaction and performance of all its obligations under this  Agreement, and (b) the Company shall perform fully its obligations under this  Agreement without regard to whether Indemnitee holds, may pursue or has pursued  any indemnification, advancement, contribution or insurance coverage rights against  any person or entity other than the Company.                                 20                





 






                                        ARTICLE 16                                           ENFORCEMENT AND BINDING EFFECT                16.1. The Company expressly confirms and agrees that it has  entered into this Agreement and assumed the obligations imposed on it hereby in  order to induce Indemnitee to serve or continue to serve as a director, officer or key  employee of the Company, and the Company acknowledges that Indemnitee is  relying upon this Agreement in serving or continuing to serve as a director, officer or  key employee of the Company.               16.2. This Agreement shall be effective as of the date set forth on  the first page and may apply to acts or omissions of Indemnitee which occurred prior  to such date if Indemnitee was an officer, director, employee or other agent of the  Company, or was serving at the request of the Company as a director, officer,  trustee, general partner, managing member, fiduciary, employee or agent of another  corporation, limited liability company, partnership, joint venture, trust or other  enterprise, at the time such act or omission occurred.               16.3. The Company and Indemnitee agree herein that a monetary  remedy for breach of this Agreement, at some later date, may be inadequate,  impracticable and difficult to prove, and further agree that such breach may cause  Indemnitee irreparable harm. Accordingly, the parties hereto agree that Indemnitee  may enforce this Agreement by seeking, among other things, injunctive relief and/or  specific performance hereof, without any necessity of showing actual damage or  irreparable harm and that by seeking injunctive relief and/or specific performance,  Indemnitee shall not be precluded from seeking or obtaining any other relief to  which he may be entitled. The Company and Indemnitee further agree that  Indemnitee shall be entitled to such specific performance and injunctive relief,  including, without limitation, temporary restraining orders, preliminary injunctions  and permanent injunctions, without the necessity of posting bonds or other  undertaking in connection therewith. The Company acknowledges that in the  absence of a waiver, a bond or undertaking may be required of Indemnitee by the  Court, and the Company hereby waives any such requirement of such a bond or  undertaking.                           ARTICLE 17                                                       MISCELLANEOUS                17.1. Successors and Assigns.  This Agreement shall be binding  upon the Company and its successors and assigns and shall inure to the benefit of  Indemnitee and Indemnitee’s assigns, heirs, executors and administrators. The  Company shall require and cause any successor (whether direct or indirect successor  by purchase, merger, consolidation or otherwise) to all, substantially all or a  substantial part, of the business and/or assets of the Company, by written agreement  in form and substance reasonably satisfactory to Indemnitee, expressly to assume                                 21                





 






                and agree to perform this Agreement in the same manner and to the same extent that  the Company would be required to perform if no such succession had taken place.               17.2. Section 409A.  It is intended that any indemnification  payment or advancement of Expenses made hereunder shall be exempt from Section  409A of the Internal Revenue Code of 1986, as amended, and the guidance issued  thereunder (“Section 409A”) pursuant to Treasury Regulation Section 1.409A- 1(b)(10).  Notwithstanding the foregoing, if any indemnification payment or  advancement of Expenses made hereunder shall be determined to be “nonqualified  deferred compensation” within the meaning of Section 409A, then (i) the amount of  the indemnification payment or advancement of Expenses during one taxable year  shall not affect the amount of the indemnification payments or advancement of  Expenses during any other taxable year, (ii) the indemnification payments or  advancement of Expenses must be made on or before the last day of the  Indemnitee’s taxable year following the year in which the expense was incurred and  (iii) the right to indemnification payments or advancement of Expenses hereunder is  not subject to liquidation or exchange for another benefit.                 17.3. Severability.  In the event that any provision of this  Agreement is determined by a court to require the Company to do or to fail to do an  act which is in violation of applicable law, such provision (including, without  limitation, any provision within a single Article, Section, paragraph or sentence)  shall be limited or modified in its application to the minimum extent necessary to  avoid a violation of law, and, as so limited or modified, such provision and the  balance of this Agreement shall be enforceable in accordance with their terms to the  fullest extent permitted by law.               17.4. Entire Agreement.  Without limiting any of the rights of  Indemnitee under the Certificate of Incorporation or By-Laws, this Agreement  constitutes the entire agreement between the parties hereto with respect to the subject  matter hereof and supersedes all prior agreements and understandings, oral, written  and implied, between the parties hereto with respect to the subject matter hereof.               17.5. Modification, Waiver and Termination.  No supplement,  modification, termination, cancellation or amendment of this Agreement shall be  binding unless executed in writing by each of the parties hereto. No amendment,  alteration or repeal of this Agreement or of any provision hereof shall limit or restrict  any right of Indemnitee under this Agreement in respect of any action taken or  omitted by such Indemnitee in Indemnitee’s Corporate Status prior to such  amendment, alteration or repeal.  No waiver of any of the provisions of this  Agreement shall be deemed or shall constitute a waiver of any other provisions of  this Agreement nor shall any waiver constitute a continuing waiver.               17.6. Notices.  All notices, requests, demands and other  communications under this Agreement shall be in writing and shall be deemed to  have been duly given (a) if delivered by hand and receipted for by the party to whom  said notice or other communication shall have been directed or (b) mailed by                                 22                





 






            certified or registered mail with postage prepaid on the third business day after the           date on which it is so mailed:      (i) If to Indemnitee, at the address indicated on the signature page of  this Agreement, or such other address as Indemnitee shall provide in writing to the Company.      (ii) If to the Company, to:                           ADT Inc.                          1501 Yamato Road                          Boca Raton, FL 33431                          Attn:  Chief Legal Officer                          Telephone:  (561) 988-3600  or to any other address as may have been furnished to Indemnitee in writing by the Company.                       17.7. Applicable Law.  This Agreement and the legal relations           among the parties shall be governed by, and construed and enforced in accordance           with, the laws of the State of Delaware, without regard to its conflict of laws rules.            If, notwithstanding the foregoing sentence, a court of competent jurisdiction shall           make a final determination that the provisions of the law of any state other than           Delaware govern indemnification by the Company of Indemnitee, then the           indemnification provided under this Agreement shall in all instances be enforceable           to the fullest extent permitted under such law, notwithstanding any provision of this           Agreement to the contrary.                        17.8. Identical Counterparts.  This Agreement may be executed in           one or more counterparts, each of which shall for all purposes be deemed to be an           original but all of which together shall constitute one and the same Agreement. Only           one such counterpart signed by the party against whom enforceability is sought           needs to be produced to evidence the existence of this Agreement.                        17.9. Headings.  The headings of the paragraphs of this Agreement           are inserted for convenience only and shall not be deemed to constitute part of this           Agreement or to affect the construction thereof.                        17.10. Representation by Counsel.  Each of the parties has been           represented by and has had an opportunity to consult legal counsel in connection           with the negotiation and execution of this Agreement.  No provision of this           Agreement shall be construed against or interpreted to the disadvantage of any party           by any court or arbitrator or any governmental authority by reason of such party           having drafted or being deemed to have drafted such provision.                        17.11. Period of Limitations.  No legal action shall be brought and no           cause of action shall be asserted by or in the right of the Company, the Indemnitee,           or Indemnitee’s spouse, heirs, executors or personal or legal representatives against           the Company, Indemnitee, or Indemnitee’s spouse, heirs, executors or personal or           legal representatives after the expiration of two years from the date of accrual of           such cause of action, and any claim or cause of action of the Company, the                                         23   





 






                Indemnitee, or Indemnitee’s spouse, heirs, executors or personal or legal  representatives, shall be extinguished and deemed released unless asserted by the  timely filing of a legal action within such two-year period; provided, however, that if  any shorter period of limitations is otherwise applicable to any such cause of action,  such shorter period shall govern.               17.12. Additional Acts.  If for the validation of any of the provisions  in this Agreement any act, resolution, approval or other procedure is required, the  Company undertakes to cause such act, resolution, approval or other procedure to be  affected or adopted in a manner that will enable the Company to fulfill its  obligations under this Agreement.                       [Signature page follows]                                24                





 






                                                                                           IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be  signed as of the day and year first above written.                                        COMPANY:                                                                            ADT INC.                                                                                                                  By:      ___________________________                                         Name:  []                                         Title:  []                                                                                                                   INDEMNITEE:                                                                             By:                                           Name: []                                 [Signature page to Indemnification Agreement]